326 AMERICAN INDIAN LAW REVIEW [Vol. 8 tribes expressly to reserve in a treaty of cession any prior vested rights they wished to protect," the treaty involved in McIntosh did not contain any such provision." Marshall held that the treaty therefore had operated to eclipse the plaintiffs' interest and to transfer the lands to the United States free of any encumbrance. The cession by the tribe without reservation of plaintiffs' rights had been an act of eminent domain. According to Marshall, "If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We know of no principle which can distinguish this case from a grant made to a native Indian... In McIntosh, Marshall explicitly recognized that a tribe's aboriginal proprietary interest exists within its own tenure system. This tenure system is not only separate from that of the federal government, but is actually a source of rights to the federal tenure system." In Tee-Hit-Ton, Reed assumed that all rights were held under federal tenure. Failing to find an aboriginal property interest within federal tenure, Reed declared that specific congressional action was required to create one. According to one commentator: [T]he Court inaugurated a new judicial test of aboriginal property: the legal theory that Congress has the sole right to delegate to the Indian tribes their rights to aboriginal titles. Aboriginal title did not exist, then, because of the tribes' "original natural rights as the undisputed possessors of the soil from time immemorial," as stated in Worcester. Rather, under the Court's new theory of aboriginal title, it was vested in Congress.' 177 Second, Justice Reed failed to consider that the "specific recognition" test he championed in Tillamooks I and Tee-HitTon also had been urged upon the Court in United States v. Santa Fe Pacific Ry.," where the Court unanimously had rejected it. The Court there held that the railroad grantee had received fee ti 173. Id. at 598. Accord, Barsh & Henderson, supra note 2, at 46 & n.63. See, e.g., Treaty with the Wyandot of Sept. 29, 1817, art. 8, 7 Stat. 160; Treaty with the Cherokee of Feb. 27, 1819, art. 3, 7 Stat. 195; Treaty with the Choctaw of Oct. 18, 1820, art. 9, 7 Stat 210. 174 21 US. (8 Wheat.) 543, 594 (1823). 175. Id at $93. Accord, Jackson v-Porter, 13 F. Cas. 235 (No. 7143) (C.C.N.D.N.Y. 18251 176 Northern Pac R、 、 United States, 22' U'S 355, 366 (1917), United States v. 1981 S 71. 181 (1905) Henderson, supra note 2, at 142 13 thoottiores omnited) 1148 119, 145 47 (1941), reh denied. 314 US 716 (1942) 1980] ALASKAN NATIVE PROPERTY RIGHTS 327 tle from the United States encumbered by the Hualapais' aboriginal title. The Court years earlier had held that a grant in fee of aboriginal title lands operates to convey the fee encumbered by aboriginal title." The Court in Santa Fe upheld this result even where "a tribal [aboriginal title] claim to any particular lands [is not] based upon a treaty, statute, or other formal government action. 99180 99181 It is submitted that a possessory encumbrance on a fee simple estate, which also is indefeasible by the holder of the fee, is tantamount to "property" by any generally applicable definition. This being so, Santa Fe implicitly precluded any requirement of "specific recognition" for such an interest to be compensable. Santa Fe did not hold that recognition was never necessary, however. Rather, the Court found that the extension of, inter alia, sections 9, 10, 11, and 12 of the 1834 Intercourse Act over the Territory of New Mexico clearly indicated Congress' intention to continue there "the unquestioned general policy of the Federal Government to recognize [the Indian] right of occupancy." When this is considered in light of the holding in Kie v. United States that only sections 20 and 21 of the 1834 Act were ever extended over Alaska, it is apparent that Alaskan natives never came within the policy of recognizing aboriginal title found by the Court in Santa Fe, although they did receive protection from other sources. Justice Reed, therefore, could have distinguished Santa Fe by holding what it had implied, that Intercourse Act protection was necessary for aboriginal title to be asserted as property. At any rate, Tee-Hit-Ton can have decided nothing more than that a taking of aboriginal title not subject to Intercourse Act protection is not compensable. If the Court continues. to require "recognition," it remains to be seen whether the Intercourse acts might not be sufficient recognition of aboriginal title so as to render it compensable property. Finally, Justice Reed completely misread Miller v. United States in both Tee-Hit-Ton and Hynes v. Grimes Packing Co." By no stretch of the imagination had Miller "held . . . that 179. Buttz v. Northern Pac. R.R., 119 U.S. 55, 66 (1886). See, e.g., Beecher v. Wetherby, 95 U.S. 517, 525 (1877); Clark v. Smith, 38 U.S. (13 Pet.) 195, 201 (1839). 180. 314 U.S. 339, 347 (1941), reh. denied, 314 U.S. 716 (1942). 181. Id. at 348. Accord, Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370, 379 (1st Cir. 1975) (section 12 of the 1834 Act, 25 U.S.C. § 177). 182. 27 F. 351 (C.C.D. Or. 1886). See infra, text accompanying notes 74-89 and 91.93. 183. 159 F.2d 997 (9th Cir. 1947). 184. 337 U.S. 86 (1949). 328 AMERICAN INDIAN LAW REVIEW (Vol. 8 the Indian right of occupancy ... is compensable" under the fifth amendment." While it is true that Miller devoted an inordinate amount of dictum to arguments that aboriginal title is compensable, the case clearly held that "the Tlingits' 'original Indian title' to the tidelands in question was extinguished" by the 1867 Treaty of Cession." Miller then went on to hold compensable nonaboriginal rights arising under the 1884 Organic Act, finding that the act had "been construed to constitute a Congressional 'guarantee' to all persons in possession of lands in Alaska on the date of its enactment, that they were not to be disturbed in their occupancy." 99187 Justice Reed's misreading dictum for holding seems bad enough, but it is almost tragic that the Justice apparently never understood what the Court in Miller did hold, i.e., that rights arising under the 1884 Act, recognized by the Supreme Court itself as early as 1899 and repeatedly regarded by the courts as separate from the concept of aboriginal title, were compensable under the fifth amendment. Justice Reed failed to discern that these rights existed at all. It is also unlikely that Reed realized that Miller held that aboriginal title in Alaska had been extinguished in 1867, even though the opinion of the Court of Claims in Tee-Hit-Ton had specifically addressed this aspect of Miller." Ironically, Tee-Hit-Ton is considered to have overruled this holding by implication.' 190 189 Epilogue Several years after the Tee-Hit-Ton decision, in United States v. Alaska, the federal government brought suit to quiet title to certain tidelands on the theory that it held them in trust for natives under the 1884 Organic Act. The state claimed title under the Tidelands Act," which granted all tidelands in Alaska, with certain exceptions, to the state. The court held that lands subject to claims under the 1884 Act came within the exception to the grant of any land held "by the United States for the benefit of any tribe, band, or group of [natives] or for individual 185. Id. at 106 n.28: 186. Miller v. United States, 1.59 F.2d 997, 1002 (1947). 187 Id at 1003 IXX Lee Hit Ton Indians v United States, 120 F. Supp. 202, 206-207 (C1 CI, 1954). 1xy United States v ARGO, 435 E Supp 1009, 1019 n 42 (D) Alas. 1977). 190 197 | Supp–834 (D) Alas 1961) 191 Pub. I No 85-291, 71 Star 623 (1957) (codified at 48 U.S.C. § 455 but now herefrom). 1980] ALASKAN NATIVE PROPERTY RIGHTS 329 [natives].' "" Affirming that rights under the 1884 Organic Act had not been affected by Tee-Hit-Ton, the court declared that it was "not here concerned with the matter of 'aboriginal title,' or 'recognized or unrecognized Indian title,' discussed by the Supreme Court" in that case, but with the "right which was specifically preserved in the Miller case."" After a trial on the merits, however, the court held for the state, finding that the natives' possession of the tidelands in question was not sufficiently "notorious, exclusive and continuous, [and] . . . substantial” to warrant protection under the 1884 Organic Act.194 Conclusion: Alaska-The Settlement Act and Beyond Although the federal district court was able to see the irrelevance of the Tee-Hit-Ton decision to the congressional scheme of land rights in Alaska, virtually everyone else, whether critical of the case or not, accepted the underlying assumption of Tee-HitTon that the land rights of Alaskan natives must rest upon aboriginal title alone. Thus, when the battle over native land claims in Alaska mounted in the wake of Alaska statehood and the subsequent discovery of oil, it was aboriginal title that the natives claimed. It is possible that the Alaska Native Claims Settlement Act extinguished only these aboriginal claims.'"' If 192. Id. § 455b. 193. 197 F. Supp. 834, 838-39 (D. Alas. 1961). The court seemed confused concerning what right Miller had "preserved," equating it with the right of occupancy. first recognized in the case of Johnson v. McIntosh,” 21 U.S. (8 Wheat.) 543 (1823). 197 F. Supp. at 839. In its opinion after trial, however, the court restated its reliance upon Miller, omitting any reference to McIntosh or other aboriginal title cases. United States v. Alaska, 201 F. Supp. 796, 798 (1962). 194. United States v. Alaska, 201 F. Supp. 796, 800 (1962). 195. The extinguishment provision of the Settlement Act, 43 U.S.C. § 1603, reads in part: "(b) All aboriginal titles, if any, and claims of aboriginal title . . . . are hereby extinguished. (c) All claims against the United States, the State, and all other persons that are based on claims of aboriginal right, title, use, or occupancy . . . or that are based on any statute or treaty of the United States relating to Native use and occupancy . . . are hereby extinguished." (Emphasis supplied.) It is clear that the extinguishment of aboriginal title and claims could not have affected rights under the 1884 Organic Act. It is uncertain whether the extinguishment of all claims based upon statutes relating to native use and occupancy affected 1884 Act claims. The Senate version of the bill that became the Settlement Act, S. 35, contained language expressly extinguishing claims under the 1884 and 1900 Acts. This language was dropped in committee to more closely approximate the House version, H.R. 10367, which eventually was adopted. See United States v. ARCO, 435 F. Supp. 1009, 1027-1029 & n.58 (1). Alas. 1977), aff'd 612 F.2d 1132 (9th Cir. 1980). Both the 1884 and 1900 Acts unofficially are considered to be in force. See 25 U.S.C. § 280a (1900 Act); U.S.C.S. Uncodi 4 Material 546, 566 (1884 Act; section 8 not listed as repealed). this is so, native tribes and individuals may continue to hold the same vested rights to their lands as they have held since 1884. The Tee Hit Ton Decision Outside of Alaska he integrity of the judicial process demands that Tee-Hit-Ton and its progeny be disregarded as precedent and that the character of aboriginal title be considered anew, through principled analysis of history and legal precedent. The scholarship of the opinion is abysmally poor. Only the thin strands of ipse dixit and judicial inertia are left to support a concept of aboriginal rights wholly at odds with history and legal precedent. If the Court refuses to overrule Tee Hit-Ton, the case still should have little relevance outside of Alaska. The Court in TeeHit-Ton perhaps did have jurisdiction to decide that aboriginal title might need "recognition" to be asserted against the United States, but only if it first had decided that aboriginal title existed in Alaska. As we have seen, the Court did this by assumption (through the stipulation of the parties), and its determination was unsupportable by, and probably at variance with, most applicable precedent. Even if aboriginal title did exist in Alaska, the Court could decide nothing more than that no statute applicable in the case provided the requisite "recognition." As noted, the Intercourse acts were not generally applicable in Alaska, and their effect therefore was not passed upon, either explicitly or implicitly. If Tee-Hit-Ton stands, and recognition continues to be required, the Intercourse acts are a strong candidate for having sufficiently recognized the proprietary nature of aboriginal possession. The Intercourse acts validated the prevailing discovery paradigm of tribal rights. The discovery doctrine implicitly assumes that bal rights are proprietary, for only by their acquisition can the holder of the "naked" fee obtain a fee simple absolute. The impact of Tee-Hit-Ton on the law has been far-reaching, both figuratively and geographically. The decision has been relied upon in both Canada and Australia to justify takings of aboriginal lands, and it effectively has forged a shift in the prevalent concept of aboriginal property rights in the United States. That such a poorly reasoned and researched opinion should have had such an impact is an injustice to aboriginal peoples everywhere as well as a travesty on the law. It is heartening that the International Court of Justice recently has rejected not only the rule of Tee-Hit-Ton but the entire doctrine of discovery as well." 140 196 Western Samora Advisory Opinion, 1975 CJ Reports 12, 81 et seq., 103, 173 |